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Intellectual Property

Lawsuit blurs lines between inspiration, reproduction

Toronto intellectual property lawyer John Simpson says that if the "Blurred Lines" lawsuit had been a Canadian case, things would have played out quite differently in court.

"In Canadian copyright law, the question would be is it a reproduction of a substantial part of an author’s work? Determining what constitutes a substantial part is not a quantitative thing, it's qualitative," Simpson says. "In other words, if there's three seconds of a song that is instantly recognizable — it could be a hook or guitar riff — that would be more likely to be considered a substantial part than a whole minute of filler from another song."

A federal jury in the U.S. recently found the hit song “Blurred Lines” infringed on the copyright of Marvin Gaye’s song “Got to Give it up” in a ruling that Simpson says really turned on the jury’s impression of stylistic similarities between the two songs.

“Blurred Lines” creators — producer Pharrell Williams and singer Robin Thicke — were hit with $7.3 million in damages and profits. The pair’s attorney says they will appeal the decision, according to The Hollywood Reporter.

Simpson, principal with Shift Law, says this suit is the latest in a history of cases that determine if two songs are too close for comfort.

“It's a classic matter of in the ear of the beholder how similar two songs sound,” he tells AdvocateDaily.com. “First and foremost, there has to be a determination whether the defendant had access to the plaintiff’s song because copyright doesn't prevent against independent creation.”

While Williams and Thicke admitted that they drew inspiration from Marvin Gaye’s music, their attorney Howard King stated: "My clients know that they wrote the song 'Blurred Lines' from their hearts and souls and no other source. ... We are going to exercise every post trial remedy we have to make sure this verdict does not stand. We look at it as being in the seventh inning of a game that could go into extra innings," says The Hollywood Reporter.

"Pharrell has readily admitted that Marvin Gaye is one of his idols, but it's silk and rayon. ... If this is the way the law is going to go, then the creator of rayon better look behind him for lawsuits from the owners of silk, because, even though they feel the same they are structurally, completely different just like these songs," the article continues.

Simpson says the case is interesting because throughout the history of popular music, songwriters and musicians are inspired by what they've heard in the past.

“Sometimes you get an earworm and you hear songs and melodies deep within your head and you don't know where or when you've heard them before,” he says. “In some cases — and these are typically the cases where liability is found — it's more egregious when someone clearly has heard the plaintiff’s song and they were aware of what they were doing when they composed a new song that is similar.”

Another important difference between U.S. and Canadian law is that a case of this nature would not be decided on by a jury.

"Canadian IP cases don't go before juries. If there was ever a kind of case where there ought to be a jury, it should be this kind of case,” says Simpson. "You would want a panel of average people to listen as it’s mostly an aesthetic determination.”

In the “Blurred Lines” trial, Rolling Stone reports that Thicke performed the two songs on a keyboard, while the Gayes could not play the recorded version of "Got to Give It Up" because the copyright they were defending only applied to the sheet music.

“The judge claimed that Gaye's voice, the version's backup vocals and some of the percussion — all of which are not covered by copyright — could sway the jury; eventually, they were allowed to play a stripped-down version of the tune,” Rolling Stone reports.

Simpson says a suit in Canada would be determined by a judge alone, with the assistance of expert witnesses.

“It would come down to expert opinion as to whether the defendant's work was a reproduction of the plaintiff's work. That brings up the issue of whose opinion matters. Is it an expert’s opinion or an everyday Joe's opinion?” he says.


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